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In the Matter of Alison D., Appellant, v. Virginia M., Respondent Court of Appeals of New York 77 N.Y.2d 651; 572 N.E.2d 27; 1991 N.Y. LEXIS 634; 569 N.Y.S.2d 586 March 20, 1991, Argued May 2, 1991, Decided PRIOR HISTORY: [***1] Appeal, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that court, entered March 2, 1990, which affirmed a judgment of the Supreme Court (James D. Benson, J.), entered in Dutchess County, dismissing a habeas corpus proceeding to obtain visitation rights. <=1> Matter of Alison D. v Virginia M ., 155 AD2d 11. DISPOSITION: Order affirmed, with costs. HEADNOTES: Parent and Child -- Visitation -- Rights of Nonparent -- Standing to Seek Visitation with Child Properly in Custody of Biological Parent 77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***1; 569 N.Y.S.2d 586 Petitioner, who is not the biological or adoptive parent of a child properly in the custody of his biological mother, does not have standing to seek visitation with the child under Domestic Relations Law @ 70. Petitioner is not a "parent" within the meaning of section 70. She has no right under section 70 to seek visitation and, thereby, limit or diminish the right of the concededly fit biological parent to choose with whom her child associates. To allow the courts to award visitation -- a limited form of custody -- to a third person would necessarily impair the parents' right to custody and control of their child. Section [***2] 70 should not be read to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child's parents and who wish to continue visitation with the child. COUNSEL: Paula L. Ettelbrick, Marian Rosenberg and Debra L. Rothberg for appellant. I. The court below erred in holding that appellant was not a parent entitled to assert a claim for visitation. ( <=2> Doe v Doe, 92 Misc 2d 184; <=3> Matter of Mark V. v Gale P., 143 Misc 2d 487; <=4> Matter of Plato's Cave Corp. v State Liq. Auth., 68 NY2d 791; Matter of "Male F.", <=5> 97 Misc 2d 505; <=6> Rankin v Shanker, 23 NY2d 111; <=7> Matter of Hogan v Culkin, 18 NY2d 330; <=8> Braschi v Stahl Assocs. Co., 74 NY2d 201; <=9> Matter of Rich v Kaminsky, 254 App Div 6; <=10> Finlay v Finlay, 240 NY 429; <=11> Matter of Humphrey v Humphrey, 103 Misc 2d 175.) II. Virginia M. is equitably 77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***2; 569 N.Y.S.2d 586 estopped from refusing visitation between Alison D. and A.D.M. ( <=12> Metropolitan Life Ins. Co. v Childs Co., 230 NY 285, 231 NY 551; [***3] <=13> Matter of Karin T. v Michael T., 127 Misc 2d 14; <=14> Wener v Wener, 35 AD2d 50; <=15> Gursky v Gursky, 39 Misc 2d 1083.) Anthony G. Maccarini for respondent. I. The lower court was correct in ruling that petitioner-appellant lacked standing to institute an action for visitation. ( <=16> Matter of Pierson, 126 AD2d 729; <=17> Lo Presti v Lo Presti, 40 NY2d 522; <=18> Matter of Bennett v Jeffreys, 40 NY2d 543; <=19> Matter of Roland F. v Brezenoff, 108 Misc 2d 133; <=20> Matter of Ronald FF. v Cindy GG., 70 NY2d 141; <=21> Stanley v Illinois, 405 U.S. 645; <=22> Doe v Doe, 92 Misc 2d 184; <=23> Matter of Mark V. v Gale P., 143 Misc 2d 487.) II. The courts should not redefine who is a parent. ( <=24> Russello v United States, 464 U.S. 16; <=25> People v Eulo, 63 NY2d 341; We' <=26> re Assocs. Co. v Cohen, Stracher & Bloom, 65 NY2d 148; <=27> Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506; <=28> Van Amerogen v Donnini, 156 AD2d 103; [***4] <=29> Matter of Karin T. v Michael T., 127 Misc 2d 14; <=30> Matter of Morningstar, 143 Misc 620; <=31> Betz v Horr, 276 NY 83; <=32> Matter of Jennifer, 142 Misc 2d 912; <=33> Matter of Long v Adirondack, Park Agency, 76 NY2d 416.) III. In loco parentis status does not give standing to assert a claim for visitation. ( <=34> Matter of Ronald FF. v Cindy GG., 70 NY2d 141; <=35> Matter of Trapp 77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***4; 569 N.Y.S.2d 586 v Trapp, 126 Misc 2d 30; <=36> Matter of Melissa M., 101 Misc 2d 407; <=37> Matter of Orlando F., 40 NY2d 103.) IV. The doctrine of equitable estoppel is inapplicable to visitation matters. ( <=38> Wener v Wener, 35 AD2d 50; <=39> Gursky v Gursky, 39 Misc 2d 1083; <=40> Matter of Karin T. v Michael T., 127 Misc 2d 14.) V. The only constitutional rights in question here are the rights of the legal parent to raise her child as she sees fit. ( <=41> Wisconsin v Yoder, 406 U.S. 205; <=42> Baer v Town of Brookhaven, 73 NY2d 942; <=43> Braschi v Stahl Assocs. Co., 74 NY2d 201; <=44> Stanley v Illinois, 405 U.S. 645; [***5] <=45> Caban v Mohammed, 441 U.S. 380; <=46> Pierce v Society of Sisters, 268 U.S. 510; <=47> Meyer v Nebraska, 262 U.S. 390; <=48> Santosky v Kramer, 455 U.S. 745.) VI. The trial court properly declined to appoint an attorney for the child. ( <=49> Smith v Organization of Foster Families, 431 U.S. 816.) William B. Rubenstein, of the Pennsylvania and District of Columbia Bars, admitted pro hac vice, Nan D. Hunter and Robert Levy for The American Civil Liberties Union and another, amici curiae. A restrictive reading of "parent" which denies petitioner standing, burdens the constitutional rights of the child by establishing an irrebuttable presumption that visitation by a coparent is never in the child's best interest. ( <=50> Wisconsin v Yoder, 406 U.S. 205; <=51> Stanley v Illinois, 405 U.S. 645; <=52> Prince v Massachusetts, 321 U.S. 158; <=53> Meyer v Nebraska, 262 U.S. 390; <=54> Quilloin v Walcott, 77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***5; 569 N.Y.S.2d 586 434 U.S. 246; <=55> Matter of Ronald FF. v Cindy GG., 70 NY2d 141; <=56> Duchesne v Sugarman, 566 F2d 817; <=57> Smith v Organization of Foster Families, 431 U.S. 816; [***6] <=58> Rivera v Marcus, 696 F2d 1016; <=59> Baer v Town of Brookhaven, 73 NY2d 942.) Conrad K. Harper, Jane E. Booth, Janice Goodman and Carol R. Sherman for The Association of the Bar of the City of New York, amicus curiae. Petitioner-appellant Alison D., who has functioned as A.D.M.'s parent, has standing to bring this habeas corpus petition to determine visitation rights. ( <=60> People ex rel. Duryee v Duryee, 188 NY 440; <=61> Diemer v Diemer, 8 NY2d 206; <=62> Matter of Lincoln v Lincoln, 24 NY2d 270; <=63> Matter of Town of New Castle v Kaufmann, 72 NY2d 684; <=64> Braschi v Stahl Assocs. Co., 74 NY2d 201; <=65> Baer v Town of Brookhaven, 73 NY2d 942; <=66> McMinn v Town of Oyster Bay, 66 NY2d 544; <=67> Group House v Board of Zoning & Appeals, 45 NY2d 266; <=68> City of White Plains v Ferraioli, 34 NY2d 300; <=69> Matter of Ronald FF. v Cindy GG., 70 NY2d 141.) Lynn Hecht Schafran, Alison Wetherfield and Sally F. Goldfarb of the District of Columbia and Wisconsin Bars, admitted pro hac [***7] vice, for NOW Legal Defense and Education Fund and another, amici curiae. I. Alison D. has standing to seek visitation under Domestic Relations Law @ 70 pursuant to a functional definition of parenthood. ( <=70> Zablocki v Redhail, 434 U.S. 374; 77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***7; 569 N.Y.S.2d 586 <=71> Stanley v Illinois, 405 U.S. 645; <=72> Prince v Massachusetts, 321 U.S. 158; <=73> Pierce v Society of Sisters, 268 U.S. 510; <=74> Meyer v Nebraska, 262 U.S. 390; <=75> Moore v East Cleveland, 431 U.S. 494; <=76> City of White Plains v Ferraioli, 34 NY2d 300; <=77> Baer v Town of Brookhaven, 73 NY2d 942; <=78> McMinn v Town of Oyster Bay, 66 NY2d 544; <=79> Group House v Board of Zoning & Appeals, 45 NY2d 266.) II. A functional definition of parenthood is necessary to protect the rights of lesbian and gay families. ( <=80> Frances B. v Mark B., 78 Misc 2d 112; <=81> Di Stefano v Di Stefano, 60 AD2d 976; <=82> M.A.B. v R.B., 134 Misc 2d 317; <=83> Guinan v Guinan, 102 AD2d 963.) III. A functional definition of parenthood is practical and will promote [***8] the interests of parents and children. ( <=84> Braiman v Braiman, 44 NY2d 584.) Janet E. Schomer and Susan R. Keith for The Gay and Lesbian Parents Coalition International and others, amici curiae. Lesbian and gay coparents are the functional equivalent of biological parents; thus they are in loco parentis and the lower courts erred in refusing to grant Alison D. standing. ( <=85> Matter of Jamal B., 119 Misc 2d 808; <=86> Johnson v Jamaica Hosp., 62 NY2d 523; <=87> People v Franklin, 79 AD2d 611; <=88> Braschi v Stahl Assocs. Co., 74 NY2d 201; <=89> Matter of Ronald FF. v Cindy GG., 70 NY2d 141; <=90> Matter of Bennett v Jeffreys, 40 NY2d 543; <=91> Matter of Taylor v Alger, 129 Misc 2d 1054; <=92> Weiss v Weiss, 52 NY2d 170.) 77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***8; 569 N.Y.S.2d 586 Jane A. Levine, David Chambers and Martha Minow for Deborah A. Batts and others, amici curiae. I. The court below erred in holding that a person in the position of Alison D. is not a "parent" entitled to be heard on a claim for visitation. ( <=93> Matter of Ronald FF. v Cindy GG., 70 NY2d 141; [***9] <=94> Matter of Bennett v Jeffreys, 40 NY2d 543; <=95> Braschi v Stahl Assocs. Co., 74 NY2d 201.) II. This case should not be controlled by Matter of Ronald FF. v Cindy GG., which is both distinguishable and unwise. ( <=96> Matter of Ronald FF. v Cindy GG., 70 NY2d 141; <=97> Matter of Mark V. v Gale P., 143 Misc 2d 487.) Loren M. Warboys for Youth Law Center, amicus curiae. I. The child has a substantial interest in this matter. ( <=98> Wisconsin v Yoder, 406 U.S. 205; <=99> Pierce v Society of Sisters, 268 U.S. 510; <=100> Meyer v Nebraska, 262 U.S. 390; <=101> Santosky v Kramer, 455 U.S. 745; <=102> May v Anderson, 345 U.S. 528; <=103> Caban v Mohammed, 441 U.S. 380; <=104> Weiss v Weiss, 52 NY2d 170; <=105> Duchesne v Sugarman, 566 F2d 817; <=106> Smith v Organization of Foster Families, 431 U.S. 816; <=107> Lehr v Robertson, 463 U.S. 248.) II. The child's interest should have been presented to the Court. ( <=108> Lassiter v Department of Social Servs., 452 U.S. 18.) JUDGES: Chief Judge Wachtler [***10] and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Kaye dissents 77 N.Y.2d 651, *; 572 N.E.2d 27, **; 1991 N.Y. LEXIS 634, ***10; 569 N.Y.S.2d 586 and votes to reverse in a separate opinion. OPINIONBY: PER CURIAM OPINION: [*654] [**28] OPINION OF THE COURT At issue in this case is whether petitioner, a biological [*655] stranger to a child who is properly in the custody of his biological mother, has standing to seek visitation with the child under Domestic Relations Law @ 70. Petitioner relies on both her established relationship with the child and her alleged agreement with the biological mother to support her claim that she has standing. We agree with the Appellate Division that, although petitioner apparently nurtured a close and loving relationship with the child, she is not a parent within the meaning of Domestic Relations Law @ 70. Accordingly, we affirm. I Petitioner Alison D. and respondent Virginia M. established a relationship in September 1977 and began living together in March 1978. * In March 1980, they decided to have a child and agreed that respondent would be artificially inseminated. Together, they planned for the conception and birth of the child and agreed to share jointly all rights and responsibilities [***11] of 77 N.Y.2d 651, *655; 572 N.E.2d 27, **28; 1991 N.Y. LEXIS 634, ***11; 569 N.Y.S.2d 586 child-rearing. In July 1981, respondent gave birth to a baby boy, A.D.M., who was given petitioner's last name as his middle name and respondent's last name became his last name. Petitioner shared in all birthing expenses and, after A.D.M.'s birth, continued to provide for his support. During A.D.M.'s first two years, petitioner and respondent jointly cared for and made decisions regarding the child. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - * Given the procedural posture of the case, the facts are those alleged by petitioner in her habeas corpus petition. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In November 1983, when the child was 2 years and 4 months old, petitioner and respondent terminated their relationship and petitioner moved out of the home they jointly owned. Petitioner and respondent agreed to a visitation schedule whereby petitioner continued to see the child a few times a week. Petitioner also agreed to continue to pay one half of the mortgage and major household expenses. By this time, the child had referred to both respondent and petitioner as "mommy". Petitioner's visitation [***12] with the child continued until 1986, at which time respondent bought out petitioner's 77 N.Y.2d 651, *655; 572 N.E.2d 27, **28; 1991 N.Y. LEXIS 634, ***12; 569 N.Y.S.2d 586 interest in the house and then began to restrict petitioner's visitation with the child. In 1987 petitioner moved to Ireland to pursue career opportunities, but continued her attempts to communicate with the child. Thereafter, respondent terminated all contact between petitioner and the child, returning all of petitioner's gifts and letters. No dispute exists that [*656] [**29] respondent is a fit parent. Petitioner commenced this proceeding seeking visitation rights pursuant to Domestic Relations Law @ 70. Supreme Court dismissed the proceeding concluding that petitioner is not a parent under Domestic Relations Law @ 70 and, given the concession that respondent is a fit parent, petitioner is not entitled to seek visitation pursuant to section 70. The Appellate Division affirmed, with one Justice dissenting, and granted leave to appeal to our Court. II Pursuant to Domestic Relations Law @ 70 "either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and [the court] may award the natural guardianship, charge and custody of such child [***13] to either parent * * * as the case may require". Although the Court is mindful of petitioner's understandable concern for and interest in the child and of her expectation and desire that her 77 N.Y.2d 651, *656; 572 N.E.2d 27, **29; 1991 N.Y. LEXIS 634, ***13; 569 N.Y.S.2d 586 contact with the child would continue, she has no right under Domestic Relations Law @ 70 to seek visitation and, thereby, limit or diminish the right of the concededly fit biological parent to choose with whom her child associates. She is not a "parent" within the meaning of section 70. Petitioner concedes that she is not the child's "parent"; that is, she is not the biological mother of the child nor is she a legal parent by virtue of an adoption. Rather she claims to have acted as a "de facto" parent or that she should be viewed as a parent "by estoppel". Therefore, she claims she has standing to seek visitation rights. These claims, however, are insufficient under section 70. Traditionally, in this State it is the child's mother and father who, assuming fitness, have the right to the care and custody of their child, even in situations where the nonparent has exercised some control over the child with the parents' consent (see, <=109> Matter of Ronald FF. v Cindy GG., 70 NY2d 141, 144, [***14] citing <=110> People ex rel. Kropp v Shepsky, 305 NY 465, 468-469). "It has long been recognized that, as between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity" ( <=111> Matter of Ronald FF. v Cindy GG., supra, at 144; see also, <=112> Matter of Bennett v Jeffreys, 40 NY2d 543, 549). To allow the courts to award visitation -- a limited form of custody -- to a third person would necessarily impair the parents' [*657] right to custody and control (id.). Petitioner concedes that respondent is a fit parent. 77 N.Y.2d 651, *657; 572 N.E.2d 27, **29; 1991 N.Y. LEXIS 634, ***14; 569 N.Y.S.2d 586 Therefore she has no right to petition the court to displace the choice made by this fit parent in deciding what is in the child's best interests. Section 70 gives parents the right to bring proceedings to ensure their proper exercise of their care, custody and control (see, <=113> Matter of Roland F. v Brezenoff, 108 Misc 2d 133, 134-135). Where the Legislature deemed it appropriate, it gave other categories of persons standing to seek visitation and it gave the courts the power to determine whether an award of visitation would be in the child's best [***15] interests (see, e.g., Domestic Relations Law @ 71 [special proceeding or habeas corpus to obtain visitation rights for siblings]; @ 72 [special proceeding or habeas corpus to obtain visitation rights for grandparents]; see, <=114> Lo Presti v Lo Presti, 40 NY2d 522, 526-527). We decline petitioner's invitation to read the term parent in section 70 to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child's parents and who wish to continue visitation with the child (accord, <=115> Nancy S. v Michele G., 228 Cal App 3d 831, 279 Cal Rptr 212 [1st Dist, Mar. 20, 1991]). While one may dispute in an individual case whether it would be beneficial to a child to have continued contact with a nonparent, the Legislature did not in section 70 give such nonparent the opportunity to compel a fit parent to allow them to do so (see, <=116> Matter of Ronald FF. v Cindy GG., 70 NY2d 141, supra; compare, Oregon Rev Stat Ann [**30] @ 109.119 77 N.Y.2d 651, *657; 572 N.E.2d 27, **30; 1991 N.Y. LEXIS 634, ***15; 569 N.Y.S.2d 586 [1] [giving "(a)ny person including but not limited to a foster parent, stepparent, grandparent * * * who has established emotional ties [***16] creating a child-parent relationship with a child" the right to seek visitation or other right of custody]). Accordingly, the order of the Appellate Division should be affirmed, with costs. DISSENTBY: KAYE DISSENT: Kaye, J. (dissenting). The Court's decision, fixing biology n1 as the key to visitation rights, has impact far beyond this particular controversy, one that may affect a wide spectrum of relationships -- including those of longtime heterosexual stepparents, "common-law" and nonheterosexual partners such as involved here, and even participants in scientific reproduction procedures. Estimates that more than 15.5 million children do [*658] not live with two biological parents, and that as many as 8 to 10 million children are born into families with a gay or lesbian parent, suggest just how widespread the impact may be (see, Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and other Nontraditional Families, <=117> 78 Geo LJ 459, 461, n 2 [1990]; Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the 77 N.Y.2d 651, *658; 572 N.E.2d 27, **30; 1991 N.Y. LEXIS 634, ***16; 569 N.Y.S.2d 586 Premise of the Nuclear Family has Failed, <=118> 70 Va L Rev 879, 880-881 [***17] [1984]; see generally, Developments in the Law -- Sexual Orientation and the Law, <=119> 102 Harv L Rev 1508, 1629 [1989]). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 While the opinion speaks of biological and legal parenthood, this Court has not yet passed on the legality of adoption by a second mother. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - But the impact of today's decision falls hardest on the children of those relationships, limiting their opportunity to maintain bonds that may be crucial to their development. The majority's retreat from the courts' proper role -- its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children's interests into account -- compels this dissent. In focusing the difference, it is perhaps helpful to begin with what is not at issue. This is not a custody case, but solely a visitation petition. The issue on this appeal is not whether petitioner should actually have visitation rights. Nor is the issue the relationship between Alison D. and Virginia M. 77 N.Y.2d 651, *658; 572 N.E.2d 27, **30; 1991 N.Y. LEXIS 634, ***17; 569 N.Y.S.2d 586 Rather, the sole issue is the relationship [***18] between Alison D. and A.D.M., in particular whether Alison D.'s petition for visitation should even be considered on its merits. I would conclude that the trial court had jurisdiction to hear the merits of this petition. The relevant facts are amply described in the Court's opinion. Most significantly, Virginia M. agrees that, after long cohabitation with Alison D. and before A.D.M.'s conception, it was "explicitly planned that the child would be theirs to raise together." It is also uncontested that the two shared "financial and emotional preparations" for the birth, and that for several years Alison D. actually filled the role of coparent to A.D.M., both tangibly and intangibly. In all, a parent-child relationship -- encouraged or at least condoned by Virginia M. -- apparently existed between A.D.M. and Alison D. during the first six years of the child's life. While acknowledging that relationship, the Court nonetheless proclaims powerlessness to consider the child's interest at all, because the word "parent" in the statute imposes an absolute barrier to Alison D.'s petition for visitation. That [*659] same conclusion would follow, as the Appellate Division dissenter noted, [***19] were the coparenting relationship one of 10 or more years, and irrespective of how close or deep the emotional ties might be between petitioner and child, or how devastating isolation might be to the 77 N.Y.2d 651, *659; 572 N.E.2d 27, **30; 1991 N.Y. LEXIS 634, ***19; 569 N.Y.S.2d 586 child. I cannot agree that such a result is mandated by section 70, or any other law. Domestic Relations Law @ 70 provides a mechanism for "either parent" to bring a habeas corpus proceeding to determine a child's custody. Other State Legislatures, in comparable statutes, have defined "parent" specifically (see, e.g., Cal Civ Code @ 7001 [defining parent-child relationship [**31] as between "a child and his natural or adoptive parents"]), and that definition has of course bound the courts (see, <=120> Nancy S. v Michele G., 228 Cal App 3d 831, 279 Cal Rptr 212 [Mar. 20, 1991] [applying the statutory definition]). Significantly, the Domestic Relations Law contains no such limitation. Indeed, it does not define the term "parent" at all. That remains for the courts to do, as often happens when statutory terms are undefined. The majority insists, however, that, the word "parent" in this case can only be read to mean biological parent; the response "one fit parent" [***20] now forecloses all inquiry into the child's best interest, even in visitation proceedings. We have not previously taken such a hard line in these matters, but in the absence of express legislative direction have attempted to read otherwise undefined words of the statute so as to effectuate the legislative purposes. The Legislature has made plain an objective in section 70 to promote "the best interest of the child" and the child's "welfare and happiness." 77 N.Y.2d 651, *659; 572 N.E.2d 27, **31; 1991 N.Y. LEXIS 634, ***20; 569 N.Y.S.2d 586 (Domestic Relations Law @ 70.) Those words should not be ignored by us in defining standing for visitation purposes -- they have not been in prior case law. Domestic Relations Law @ 70 was amended in 1964 to broaden the category of persons entitled to seek habeas corpus relief (L 1964, ch 564, @ 1). Previously, only a husband or wife living within the State, and legally separated from the spouse, had standing to bring such a proceeding. The courts, however, refused to apply the statute so literally. In amending the statute to make domicile of the child the touchstone, and eliminate the separation requirement, the Legislature acted to bring section 70 into conformity with what the courts were already doing (see, Mem of Joint [***21] Legis Comm on Matrimonial and Family Laws, 1964 McKinney's Session Laws of NY, at [*660] 1880 [amendment deleted "needless limitations which are not, in fact, observed by the Courts"]). This amendment to bring the statute into line with the practice reflects Supreme Court's equitable powers that complement the special habeas statute (see, <=121> Langerman v Langerman, 303 NY 465, 471; see generally, NY Const, art VI, @ 7 [a]). In <=122> Finlay v Finlay (240 NY 429, 433), this Court established that where the section 70 writ is denied to the petitioner seeking custody "there would remain his remedy by petition to the chancellor or to the 77 N.Y.2d 651, *660; 572 N.E.2d 27, **31; 1991 N.Y. LEXIS 634, ***21; 569 N.Y.S.2d 586 court that has succeeded to the chancellor's prerogative [and] nothing in the habeas corpus act affects that jurisdiction." In such an action, the Chancellor "may act at the intervention or on the motion of a kinsman * * * but equally he may act at the instance of any one else." <=123> (240 NY, at 434.) Jurisdiction rests on the parens patriae power -- concern for the welfare of the child (id.; see also, <=124> Matter of Bachman v Mejias, 1 NY2d 575, 581). As the Court wrote in <=125> Matter of Bennett v Jeffreys (40 NY2d 543, 546) -- [***22] even in recognizing the superior right of a biological parent to the custody of her child -- "when there is a conflict, the best interest of the child has always been regarded as superior to the right of parental custody. Indeed, analysis of the cases reveals a shifting of emphasis rather than a remaking of substance. This shifting reflects more the modern principle that a child is a person, and not a subperson over whom the parent has an absolute possessory interest." Apart from imposing upon itself an unnecessarily restrictive definition of "parent," and apart from turning its back on a tradition of reading of section 70 so as to promote the welfare of the children, in accord with the parens patriae power, the Court also overlooks the significant distinction between visitation and custody proceedings. 77 N.Y.2d 651, *660; 572 N.E.2d 27, **31; 1991 N.Y. LEXIS 634, ***22; 569 N.Y.S.2d 586 While both are of special concern to the State, custody and visitation are significantly different (see, <=126> Weiss v Weiss, 52 NY2d 170, 175; <=127> Matter of Ronald FF. v Cindy GG., 70 NY2d 141, 144). n2 [**32] Custody disputes implicate a parent's right to rear a child -- with the child's corresponding right to be raised by a parent (see, <=128> Matter of Bennett v Jeffreys, 40 NY2d, at 546, [*661] [***23] supra). Infringement of that right must be based on the fitness -- more precisely the lack of fitness -- of the custodial parent. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The majority's opinion rests on a fundamental inconsistency. It cannot be that visitation is the same as custody -- "a limited form of custody" (majority opn, at 656) -- and yet at the same time different from custody in that the "extraordinary circumstances" doctrine is inapplicable ( <=129> Matter of Ronald FF. v Cindy GG., 70 NY2d 141; see also, <=130> Matter of Mark V. v Gale P., 143 Misc 2d 487, 489). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Visitation rights also implicate a right of the custodial parent, but it is the right to choose with whom the child associates (see, <=131> Matter of 77 N.Y.2d 651, *661; 572 N.E.2d 27, **32; 1991 N.Y. LEXIS 634, ***23; 569 N.Y.S.2d 586 Ronald FF. v Cindy GG., 70 NY2d, at 144, supra). Any burden on the exercise of that right must be based on the child's overriding need to maintain a particular relationship (see, <=132> Weiss v Weiss, 52 NY2d, at 174-175, supra). Logically, the fitness concern [***24] present in custody disputes is irrelevant in visitation petitions, where continuing contact with the child rather than severing of a parental tie is in issue. For that reason, we refused to extend the Bennett "extraordinary circumstances" doctrine -- which relates to the fitness of the custodial parent -- to visitation petitions ( <=133> Matter of Ronald FF. v Cindy GG., 70 NY2d 141, supra). The Court now takes the law a step beyond Ronald FF. by establishing the Bennett "extraordinary circumstances" test as the only way to reach the child's best interest in a section 70 proceeding. In that Ronald FF. determined that extraordinary circumstances are irrelevant in the visitation context, our holding today thus firmly closes the door on all consideration of the child's best interest in visitation proceedings such as the one before us, unless petitioner is a biological parent. Of course there must be some limitation on who can petition for visitation. Domestic Relations Law @ 70 specifies that the person must be the child's "parent," and the law additionally recognizes certain rights of biological and legal parents. Arguments that every dedicated caretaker [***25] could sue 77 N.Y.2d 651, *661; 572 N.E.2d 27, **32; 1991 N.Y. LEXIS 634, ***25; 569 N.Y.S.2d 586 for visitation if the term "parent" were broadened, or that such action would necessarily effect sweeping change throughout the law, overlook and misportray the Court's role in defining otherwise undefined statutory terms to effect particular statutory purposes, and to do so narrowly, for those purposes only. Countless examples of that process may be found in our case law, the Court looking to modern-day realities in giving definition to statutory concepts. (See, e.g., <=134> People v Eulo, 63 NY2d 341, 354 [defining "death" for purposes of homicide prosecutions].) Only recently, we defined the term "family" in the eviction provisions of the rent stabilization laws so as to advance the legislative objective, making abundantly clear that the definition was limited to the statute in issue and did not effect a wholesale change in the law (see, <=135> Braschi v Stahl Assocs. Co., 74 NY2d 201, 211-213). [*662] In discharging this responsibility, recent decisions from other jurisdictions, for the most part concerning visitation rights of stepparents, are instructive (see, e.g., <=136> Gribble v Gribble, 583 P2d 64 [Utah]; <=137> Spells v Spells, 250 Pa Super 168, 378 A2d 879). [***26] For example in <=138> Spells (250 Pa Super, at 172-173, 378 A2d, at 881-882), the court fashioned a test for "parental status" or "in loco parentis" requiring that the petitioner demonstrate actual assumption of the parental role and discharge of parental responsibilities. It should be required that the 77 N.Y.2d 651, *662; 572 N.E.2d 27, **32; 1991 N.Y. LEXIS 634, ***26; 569 N.Y.S.2d 586 relationship with the child came into being with the consent of the biological or legal parent, and that the petitioner at least have had joint custody of the child for a significant period of time (see, Rethinking Parenthood as an Exclusive Status, op. cit., <=139> 70 Va L Rev, at 945-946). Other factors likely should be added to [**33] constitute a test that protects all relevant interests -- much as we did in Braschi. Indeed, the criteria described by the Court in Braschi to be applied on a case-by-case basis later became the nucleus of formal standards (see, 9 NYCRR 2520.6). It is not my intention to spell out a definition but only to point out that it is surely within our competence to do so. It is indeed regrettable that we decline to exercise that authority in this visitation matter, given the explicit statutory objectives, the [***27] courts' power, and the fact that all consideration of the child's interest is, for the future, otherwise absolutely foreclosed. I would remand the case to Supreme Court for an exercise of its discretion in determining whether Alison D. stands in loco parentis to A.D.M. and, if so, whether it is in the child's best interest to allow her the visitation rights she claims. 77 N.Y.2d 651, *662; 572 N.E.2d 27, **33; 1991 N.Y. LEXIS 634, ***27; 569 N.Y.S.2d 586 Order affirmed, with costs. LEVEL 1 - 3 OF 20 CASES In the Matter of Florence Gross, petitioner, Edward Gross, appellant, v Sandra Siegman, et al., respondents. 95-07454 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 642 N.Y.S.2d 44; 1996 N.Y. App. Div. LEXIS 4703 March 7, 1996, Argued April 29, 1996, Decided NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. PRIOR HISTORY: In a proceeding pursuant to Domestic Relations Law @ 72 to obtain visitation rights, the petitioner Edward Gross appeals from an order of the Family Court, Nassau County (Feiden, J.), dated June 22, 1995, which granted the motion of the respondents to dismiss that branch of the proceeding which sought visitation rights for the petitioner Edward Gross. |
